WOODSON, J.
The plaintiffs brought this suit in ejectment in the circuit court of Marion county, against the defendants, to recover possession of a tract of land, about fifty-seven acres, situate in said county, and particularly described in the petition.
The defendants Dearing and Music were made defendants because the defendant Lewis had executed to them a mortgage on said real estate, to secure the payment of $500, money loaned him by them.
The answer was a general denial, the ten-year Statute of Limitations, and an equitable defense, etc., which is very lengthy, and need not be here set forth, because the nature of it will fully appear from the facts of the case, which are practically undisputed, though not absolutely.
Contract for Deed by Entirety: Inheritable Interest.
One Benj amine F. Jones, Sr., the common source of title, some time prior to November, 1891, died intestate, seized of two hundred acres of land, a part of which is the land in controversy. He left surviving him seven children and one grandson, the child of a deceased son. Their names were Mary S. Jones, who married James W. Lewis, the principal defendant in the case; Marion L. J ones, Martin V. Jones, William A. Jones, Sidney J. Jones, Ben-j amine F. Jones, Jr., Lydia A. Jones, who marriedWhittaker, and Samuel Jones, the son of George W. Jones, deceased.'
In May, 1908, Mary S. Lewis died intestate, leaving no children or lineal descendants, and her only heirs at law were her husband, James W. Lewis, and her brothers, sister and nephew, before mentioned.
[212]*212After the death of Benjamine F. Jones, Sr., his seven children and grandson undertook to make a friendly partition of the two hundred acres of land among themselves- — each being entitled to a one-eighth share therein, by executing and interchanging deeds among themselves, conveying to each other or their grantees, their respective shares in said real estate. But in doing so some of the children and the defendant James W. Lewis purchased the interest of some of the other children, and as a part of that general scheme of partition, said Lewis and wife agreed, contracted and undertook to convey her interest and the shares he had so purchased, to themselves as tenants by the entirety.
The facts of the partition and the attempted creation of the estate by the entirety between Lewis and wife were practically as follows:
On November 13, 1891, each of said children owned one undivided one-eighth interest in said land, and on said day William A. Jones and George W. Jones, for value received, by quitclaim deed, duly executed, conveyed their respective interest therein to their brothers, Martin Y. Jones and Benjamine F. Jones, Jr., the plaintiffs. Thereafter, on or about November 28, 1893, the plaintiff, Marion L. Jones, for value received, $450, by deed duly executed, conveyed his undivided interest in the land to the defendant, James W. Lewis; and thereafter in 1891, said Lewis contracted and agreed to purchase for the sum of $114 the interest of Samuel Jones, the grandson. This gave him two undivided shares in the estate, and his wife, Mary S. Lewis, one share therein. Upon this state of facts the defendant James W. Lewis and his-wife, Mary S. Lewis, then and there entered into a contract whereby each agreed with the other, in consideration of the exchanges or conveyances of' said interests in said land between each other, as before memtioned, that they would,, in a proper manner, by a gen[213]*213-eral warranty deed, canse their respective interests in the land to be conveyed to themselves jointly, as tenants, by the entirety, he having the two shares he had previosnly purchased from Marion L. Jones and Sidney J. Jones, and she having the one share she had inherited from her father.
This contract not only embraced the interest that the defendant Lewis and wife then owned in the land, but included also all the interests that they might thereafter acquire therein by purchase or otherwise from the other heirs or children of Benj. P. Jones, Sr.
At this point the record is not as clear as it might be, yet I believe it is reasonably certain that before the date of the contract mentioned, Lewis and his wife had not only acquired the interest before mentioned, but had also purchased the interests of Marion V. Jones, Benj. P. Jones, Jr., and Lydia A. Jones, in and to the land involved in this suit, some 57 1-7 acres. The deeds conveying these interests to Lewis and wife also contained a covenant of warranty as against the one-eighth interest then owned by Sidney J. Jones, then a minor.
Attending the particular facts of the actual partition they are as follows, as substantially stated by counsel for appellants:
“For the purpose of effecting a voluntary partition of said 200-acre tract as between said Mary S. Lewis and said other heirs, and thereby setting aside to Mary S. Lewis the 25 acres to which she was entitled by inheritance as aforesaid, and representing and being her one-eighth interest in said 200-acre tract; and for the purpose of conveying to said Lewis and wdfe, by purchase, the six-eighths interest of said Martin V. Jones, Benj amine P. Jones and Lydia A. Jones, in and to the land in controversy, and for the purpose of securing to said Lewis and wife the said one-eighth interest then owned by said mionr, Sidney J. Jones, the said Martin V. Jones, did, on November [214]*21428, 1893, make and execute their warranty deed, of that date, in which deed, the interest described as therein conveyed, was ‘the undivided seven-eighths interest in’ the land in controversy; said deed containing a general warranty clause. The consideration expressed in said deed was $900, $450 of which sum was paid by said James W. Lewis and $450 of said $900 consideration Mary S. Lewis paid by her ‘deeding to them [grantors] her undivided interest in other lands held by her in common with grantors.”
“On August 22, 1899, said Sidney J. Jones, then being of age, and still owning his said undivided one-eighth interest in said 200-acre tract, executed, together with his wife, a general warranty deed to said James W. Lewis and Mary S. Lewis, to and for ‘all the undivided one-eighth interest in’ the land in controversy.”
William A. Jones, Sidney J. Jones, Ben]. F. Jones, Jr., were made parties plaintiff in the case, yet that was done without their knowledge or consent, and they claim no interest in the lands whatever, and for that reason no further notice will be taken of them in this opinion.
Upon this state of facts counsel for the appellants, Lydia A. (Jones) Whittaker, Marion L. Jones and Martin Y. Jones, contend that Mary S. Lewis was the owner by inheritance, as heir of her father, of seven-sixteenths of the land in controversy, and that she and her husband, the defendant, were the owners, as tenants by the entirety, of the remaining nine-sixteenths interest in the land iñ controversy; and that upon the death of Mary S. Lewis the appellants inherited their proportional parts of the said seven-sixteenths of the land owned by her at the time of her death. While upon the other hand, counsel for respondent, Lewis, insist that in law, equity and good conscience he is the true and real owner of the entire fifty-seven acres, and that while the legal title to three-eighths of said seven-sixteenths may be in them, but in truth and in fact they [215]*215hold the equitable and beneficial interests therein for use and benefit of him, the respondent.
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WOODSON, J.
The plaintiffs brought this suit in ejectment in the circuit court of Marion county, against the defendants, to recover possession of a tract of land, about fifty-seven acres, situate in said county, and particularly described in the petition.
The defendants Dearing and Music were made defendants because the defendant Lewis had executed to them a mortgage on said real estate, to secure the payment of $500, money loaned him by them.
The answer was a general denial, the ten-year Statute of Limitations, and an equitable defense, etc., which is very lengthy, and need not be here set forth, because the nature of it will fully appear from the facts of the case, which are practically undisputed, though not absolutely.
Contract for Deed by Entirety: Inheritable Interest.
One Benj amine F. Jones, Sr., the common source of title, some time prior to November, 1891, died intestate, seized of two hundred acres of land, a part of which is the land in controversy. He left surviving him seven children and one grandson, the child of a deceased son. Their names were Mary S. Jones, who married James W. Lewis, the principal defendant in the case; Marion L. J ones, Martin V. Jones, William A. Jones, Sidney J. Jones, Ben-j amine F. Jones, Jr., Lydia A. Jones, who marriedWhittaker, and Samuel Jones, the son of George W. Jones, deceased.'
In May, 1908, Mary S. Lewis died intestate, leaving no children or lineal descendants, and her only heirs at law were her husband, James W. Lewis, and her brothers, sister and nephew, before mentioned.
[212]*212After the death of Benjamine F. Jones, Sr., his seven children and grandson undertook to make a friendly partition of the two hundred acres of land among themselves- — each being entitled to a one-eighth share therein, by executing and interchanging deeds among themselves, conveying to each other or their grantees, their respective shares in said real estate. But in doing so some of the children and the defendant James W. Lewis purchased the interest of some of the other children, and as a part of that general scheme of partition, said Lewis and wife agreed, contracted and undertook to convey her interest and the shares he had so purchased, to themselves as tenants by the entirety.
The facts of the partition and the attempted creation of the estate by the entirety between Lewis and wife were practically as follows:
On November 13, 1891, each of said children owned one undivided one-eighth interest in said land, and on said day William A. Jones and George W. Jones, for value received, by quitclaim deed, duly executed, conveyed their respective interest therein to their brothers, Martin Y. Jones and Benjamine F. Jones, Jr., the plaintiffs. Thereafter, on or about November 28, 1893, the plaintiff, Marion L. Jones, for value received, $450, by deed duly executed, conveyed his undivided interest in the land to the defendant, James W. Lewis; and thereafter in 1891, said Lewis contracted and agreed to purchase for the sum of $114 the interest of Samuel Jones, the grandson. This gave him two undivided shares in the estate, and his wife, Mary S. Lewis, one share therein. Upon this state of facts the defendant James W. Lewis and his-wife, Mary S. Lewis, then and there entered into a contract whereby each agreed with the other, in consideration of the exchanges or conveyances of' said interests in said land between each other, as before memtioned, that they would,, in a proper manner, by a gen[213]*213-eral warranty deed, canse their respective interests in the land to be conveyed to themselves jointly, as tenants, by the entirety, he having the two shares he had previosnly purchased from Marion L. Jones and Sidney J. Jones, and she having the one share she had inherited from her father.
This contract not only embraced the interest that the defendant Lewis and wife then owned in the land, but included also all the interests that they might thereafter acquire therein by purchase or otherwise from the other heirs or children of Benj. P. Jones, Sr.
At this point the record is not as clear as it might be, yet I believe it is reasonably certain that before the date of the contract mentioned, Lewis and his wife had not only acquired the interest before mentioned, but had also purchased the interests of Marion V. Jones, Benj. P. Jones, Jr., and Lydia A. Jones, in and to the land involved in this suit, some 57 1-7 acres. The deeds conveying these interests to Lewis and wife also contained a covenant of warranty as against the one-eighth interest then owned by Sidney J. Jones, then a minor.
Attending the particular facts of the actual partition they are as follows, as substantially stated by counsel for appellants:
“For the purpose of effecting a voluntary partition of said 200-acre tract as between said Mary S. Lewis and said other heirs, and thereby setting aside to Mary S. Lewis the 25 acres to which she was entitled by inheritance as aforesaid, and representing and being her one-eighth interest in said 200-acre tract; and for the purpose of conveying to said Lewis and wdfe, by purchase, the six-eighths interest of said Martin V. Jones, Benj amine P. Jones and Lydia A. Jones, in and to the land in controversy, and for the purpose of securing to said Lewis and wife the said one-eighth interest then owned by said mionr, Sidney J. Jones, the said Martin V. Jones, did, on November [214]*21428, 1893, make and execute their warranty deed, of that date, in which deed, the interest described as therein conveyed, was ‘the undivided seven-eighths interest in’ the land in controversy; said deed containing a general warranty clause. The consideration expressed in said deed was $900, $450 of which sum was paid by said James W. Lewis and $450 of said $900 consideration Mary S. Lewis paid by her ‘deeding to them [grantors] her undivided interest in other lands held by her in common with grantors.”
“On August 22, 1899, said Sidney J. Jones, then being of age, and still owning his said undivided one-eighth interest in said 200-acre tract, executed, together with his wife, a general warranty deed to said James W. Lewis and Mary S. Lewis, to and for ‘all the undivided one-eighth interest in’ the land in controversy.”
William A. Jones, Sidney J. Jones, Ben]. F. Jones, Jr., were made parties plaintiff in the case, yet that was done without their knowledge or consent, and they claim no interest in the lands whatever, and for that reason no further notice will be taken of them in this opinion.
Upon this state of facts counsel for the appellants, Lydia A. (Jones) Whittaker, Marion L. Jones and Martin Y. Jones, contend that Mary S. Lewis was the owner by inheritance, as heir of her father, of seven-sixteenths of the land in controversy, and that she and her husband, the defendant, were the owners, as tenants by the entirety, of the remaining nine-sixteenths interest in the land iñ controversy; and that upon the death of Mary S. Lewis the appellants inherited their proportional parts of the said seven-sixteenths of the land owned by her at the time of her death. While upon the other hand, counsel for respondent, Lewis, insist that in law, equity and good conscience he is the true and real owner of the entire fifty-seven acres, and that while the legal title to three-eighths of said seven-sixteenths may be in them, but in truth and in fact they [215]*215hold the equitable and beneficial interests therein for use and benefit of him, the respondent.
Practically the undispted evidence shows that the-scrivener who drew the deeds .was not a lawyer, yet he testified that he perfectly understood the agreement between Lewis, the respondent, and his wife; that is,, the interest of each was to be so conveyed that it would create an estate by the entirety between them, and that the survivor should take the entire estate; but being unfamiliar or ignorant of such matters and through mistake and lack of knowledge in such matters, he was of the opinion that the deeds drawn by him. in pursuance to said contract would give to the survivor the entire estate, overlooking the fact that the wife had inherited her interest, or a part of it, from her father, which was not affected by the deeds before-mentioned, and therefore that part of her interest in the land remained in her name, in violation of the understanding and agreement of them regarding the-creation of the estate by the entirety, which upon her death descended to her brothers and sister.
While appellants introduced some evidence tending to show that the interest which the scrivener had in mind and about which he was testifying, was not that of Mrs. Lewis, but that of the minor, Sidney J. Jones, and therefore there was no violation of the contract between Lewis and his wife agreeing to convey their respective interests in such a manner as to create in them an estate by the entirety; yet when the. testimony of the scrivener who drew the deeds, and practically all of the evidence, is considered, no fair-minded, disinterested person can reach any rational conclusion therefrom, except that through misunderstanding, mistake or ignorance of the scrivener and the parties, the seven-sixteenths of the land belonging to Mary S. Lewis was omitted from the deeds in violation of the contract previously mentioned.
[216]*216The proposition was fully illustrated by the questions and answers propounded to counsel for appellants dnring the oral argument of the cause in this court, which were..substantially as follows: Suppose Jas. W. Lewis, instead of his wife, had died, then who wonld have taken the interest he had purchased and which he had conveyed to them as an estate by the entirety? Promptly the reply was: She of course. Q. And that too, notwithstanding said conveyance was made in pursuance of said contract? A. Certainly. Q. Then why is not the converse of that proposition true ? ’ ’ No answer. “Q. If then, as a legal proposition, if his conveyance was made in pursuance to the contract and through mistake, oversight or ignorance her interest was omitted therefrom, then by parity of reasoning, would not equity reform the deeds and make them express the real meaning of the parties?” No answer.
This is what the pleadings in the case allege, and the evidence shows that those facts are true; and in our opinion the learned chancellor below properly so found, but the court did not go far enough. It simply found for the defendants and against the plaintiffs without reforming the deeds, but as they did not appeal, nor are they here complaining of the form of the judgment, the same in our opinion, should be affirmed; and it is so ordered.
All concur; Bond, J., in result.